87934 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

1 86 FR 67329. 

2 88 FR 45276, 45278–45279 (July 14, 2023). 

3 88 FR 45276. 

4 86 FR 67343 (November 26, 2021). 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2023–0477; FRL–11532– 

02–R9] 

Interim Final Determination To Stay or 

Defer Sanctions; California; San 

Joaquin Valley Unified Air Pollution 

Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Interim final determination. 

SUMMARY: The Environmental Protection 

Agency (EPA) is making an interim final 

determination that the State of 

California has submitted revisions to the 

California State Implementation Plan 

(SIP) that satisfy the requirements under 

the Clean Air Act (CAA or ‘‘Act’’) for 

nonattainment areas classified as 

‘‘Serious’’ for the 1997 annual fine 

particulate matter (PM2.5) national 

ambient air quality standards (NAAQS), 

and for contingency measures for the 

2006 24-hour PM2.5 NAAQS and the 

2012 annual PM2.5 NAAQS, in the San 

Joaquin Valley (SJV) nonattainment 

area. This determination is based on a 

proposed approval, published on July 

14, 2023, of SIP revisions addressing the 

Serious area requirements for the 1997 

annual PM2.5 NAAQS (except 

contingency measures) and on proposed 

approvals, published elsewhere in this 

issue of the Federal Register, of SIP 

revisions addressing the contingency 

measure requirements for the 1997 

annual PM2.5 NAAQS, the 2006 24-hour 

PM2.5 NAAQS, and the 2012 annual 

PM2.5 NAAQS. The effect of this interim 

final determination is to stay the 

application of the offset sanction and to 

defer the application of the highway 

sanction that were triggered by previous 

EPA actions that included disapproval 

of the certain Serious area SIP elements 

submitted for the San Joaquin Valley for 

the 1997 annual PM2.5 NAAQS 

(including the contingency measure 

element), and disapproval of the 

contingency measure SIP elements for 

the 2006 24-hour PM2.5 NAAQS and the 

2012 annual PM2.5 NAAQS. 

DATES: This interim final determination 

is effective on December 20, 2023. 

However, comments will be accepted 

until January 19, 2024. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2023–0477 at https:// 

www.regulations.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. The EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider Confidential 

Business Information (CBI) or other 

information the disclosure of which is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. If you need 

assistance in a language other than 

English or if you are a person with 

disabilities who needs a reasonable 

accommodation at no cost to you, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Rory 

Mays, Planning and Analysis Branch 

(AIR–2), Air and Radiation Division, 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105, (415) 972– 

3227, or by email at mays.rory@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the terms 

‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. Background 

II. EPA Action 

III. Statutory and Executive Order Reviews 

I. Background 

On November 26, 2021, the EPA took 

final action to approve in part and 

disapprove in part portions of SIP 

revisions submitted by the California 

Air Resources Board (CARB) to address 

CAA requirements for the 1997 annual 

PM2.5 NAAQS in the San Joaquin Valley 

PM2.5 nonattainment area.1 Specifically, 

the EPA approved the 2013 base year 

emissions inventories but disapproved 

the attainment demonstration and 

related elements, including the 

comprehensive precursor 

demonstration, five percent annual 

emissions reductions demonstration, 

best available control measures 

demonstration, reasonable further 

progress demonstration, quantitative 

milestones, contingency measures, and 

motor vehicle emissions budgets. In our 

November 26, 2021 action, we 

determined that while the SIP revisions 

met the requirements for base year 

inventories, the SIP revisions did not 

meet the applicable requirements for the 

other listed plan elements under title I, 

part D, of the Act and the EPA’s 

implementing regulations for Serious 

PM2.5 nonattainment areas that are 

subject to CAA section 189(d). Pursuant 

to section 179 of the CAA and our 

regulations at 40 CFR 52.31, this partial 

disapproval action started an 18-month 

clock for the application of the offset 

sanction and a 24-month clock for the 

application of the highway sanction, 

beginning on the effective date of our 

November 26, 2021 action (i.e., 

December 27, 2021), unless the State 

submits, and the EPA approves, a SIP 

revision or revisions that address the 

deficiencies that formed the basis for the 

partial disapproval prior to the 

expiration of the sanctions clocks. 

Application of the offset sanction has 

been in effect since June 27, 2023, and 

the clock for the highway sanction will 

expire on December 27, 2023. 

On November 8, 2021, CARB 

submitted the ‘‘Attainment Plan 

Revision for the 1997 Annual PM2.5

Standard’’ (herein referred to as the ‘‘15 

mg/m3 SIP Revision’’) to amend the 

previously disapproved SIP revisions 

and to address all CAA requirements for 

the 1997 annual PM2.5 NAAQS except 

for contingency measures.2 On July 14, 

2023, the EPA proposed approval of the 

relevant SIP revisions, including the 15 

mg/m3 SIP Revision, that address all the 

applicable requirements for the 1997 

annual PM2.5 NAAQS in the San Joaquin 

Valley that had been the subject of our 

November 26, 2021 final partial 

disapproval action, except for the 

contingency measure requirements.3 On 

December 5, 2023, the EPA Region IX 

Regional Administrator signed a final 

rule taking action to approve the SIP 

revisions that the EPA had proposed to 

approve on July 14, 2023. 

Also on November 26, 2021, the EPA 

published a separate final rule to 

approve in part and disapprove in part 

portions of SIP revisions submitted by 

CARB to address CAA requirements for 

the 2006 24-hour PM2.5 NAAQS and the 

2012 annual PM2.5 NAAQS in the San 

Joaquin Valley.4 Specifically, we 

approved all but the contingency 

measure element of the SIP revisions as 

they pertained to the Moderate area plan 

requirements for the 2012 PM2.5

NAAQS, and we disapproved the 


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contingency measure elements for the 

2006 24-hour PM2.5 NAAQS and the 

2012 annual PM2.5 NAAQS. Like our 

final action on the Serious area plan for 

the 1997 annual PM2.5 NAAQS, 

pursuant to section 179 of the CAA and 

our regulations at 40 CFR 52.31, our 

partial disapproval action started an 18- 

month clock for the application of the 

offset sanction and a 24-month clock for 

the application of the highway sanction, 

beginning on the effective date of our 

November 26, 2021 action (i.e., 

December 27, 2021), unless the State 

submits, and the EPA approves, a SIP 

revision or revisions that address the 

deficiencies that formed the basis for the 

disapproval prior to the expiration of 

the sanctions clocks. Application of the 

offset sanction has been in effect since 

June 27, 2023, and the clock for the 

highway sanction will expire on 

December 27, 2023. 

On June 8, 2023, CARB submitted SIP 

revisions (herein referred to as the ‘‘SJV 

PM2.5 Contingency Measure SIP’’ and 

the ‘‘Residential Wood Burning 

Contingency Measure’’) addressing the 

contingency measure requirements for 

the 1997 annual PM2.5 NAAQS, the 2006 

24-hour PM2.5 NAAQS, and the 2012 

annual PM2.5 NAAQS for the San 

Joaquin Valley. The Residential Wood 

Burning Contingency Measure would, 

following a triggering event, expand the 

residential wood burning curtailment 

restrictions if certain determinations are 

made by the EPA. On October 16, 2023, 

CARB supplemented the SJV PM2.5

Contingency Measure SIP with the 

submission of a second PM2.5

contingency measure (referred to herein 

as the ‘‘Rural Open Areas Contingency 

Measure’’) that would, following a 

triggering event, expand applicability of 

certain fugitive dust controls if triggered 

by a contingency event. In addition, on 

November 13, 2023, CARB submitted a 

state-wide contingency measure SIP 

revision, including provisions for PM2.5

contingency measures in the San 

Joaquin Valley (herein referred to as the 

‘‘Smog Check Contingency Measure’’) 

that would, following a triggering event, 

reduce the model-year vehicle 

exemption in the State’s vehicle 

inspection and maintenance program 

(referred to as the ‘‘Smog Check’’ 

program) by one year. 

In the Proposed Rules section of this 

issue of the Federal Register, we have 

proposed approval of the SJV PM2.5

Contingency Measure SIP, the 

Residential Wood Burning Contingency 

Measure, and the Rural Open Areas 

Contingency Measure, and, in a separate 

rulemaking, we have proposed approval 

of the Smog Check Contingency 

Measure. Based on our July 14, 2023 

proposed approval action with respect 

to the Serious area SIP elements for the 

San Joaquin Valley for the 1997 annual 

PM2.5 NAAQS (other than the 

contingency measure element), and on 

the proposed approval actions in this 

issue of the Federal Register with 

respect to the contingency measure SIP 

and related contingency measures, we 

are taking this final rulemaking action, 

effective upon publication, to stay 

application of the offset sanction and 

defer application of the highway 

sanction that were triggered by the 

EPA’s November 26, 2021 disapprovals 

of the Serious area plan for the 1997 

annual PM2.5 NAAQS, including the 

contingency measure element, and the 

contingency measure elements for the 

2006 24-hour PM2.5 NAAQS and the 

2012 annual PM2.5 NAAQS. We are 

doing so because we find that the 

submissions of the 15 mg/m3 SIP 

Revision, the SJV PM2.5 Contingency 

Measure SIP, the Residential Wood 

Burning Contingency Measure, the 

Rural Open Areas Contingency Measure, 

and the Smog Check Contingency 

Measure correct the deficiencies that 

triggered such sanctions. 

The EPA is providing the public with 

an opportunity to comment on this stay 

of the offset sanction and deferral of the 

highway sanction. If comments are 

submitted that change our assessment, 

as described in this final determination 

and in our proposed approvals of the 

SJV PM2.5 Contingency Measure SIP, the 

Residential Wood Burning Contingency 

Measure, the Rural Open Areas 

Contingency Measure, and the Smog 

Check Contingency Measure, with 

respect to the deficiencies identified as 

the basis for our disapprovals of the 

contingency measure elements, we will 

take final action proposing to lift this 

stay of the offset sanction and deferral 

of the highway sanction under 40 CFR 

52.31. If no comments are submitted 

that change our assessment, then all 

sanctions and any sanction clocks 

triggered by our November 26, 2021 

final actions will be permanently 

terminated on the effective date of our 

final approvals of the SJV PM2.5

Contingency Measure SIP, the 

Residential Wood Burning Contingency 

Measure, the Rural Open Areas 

Contingency Measure, and the Smog 

Check Contingency Measure. 

All sanctions and any sanctions 

clocks associated with the Serious area 

SIP elements for the 1997 annual PM2.5

NAAQS for the San Joaquin Valley 

(except the contingency measures 

element) will be permanently 

terminated on the effective date of the 

final approval of the 15 mg/m3 SIP 

Revision, which was signed by the EPA 

Region IX Regional Administrator on 

December 5, 2023. 

II. EPA Action 

We are making an interim final 

determination to stay the application of 

the offset sanction and to defer the 

application of the highway sanction 

associated with our November 26, 2021 

disapprovals of certain Serious area 

plan elements for the 1997 annual PM2.5

NAAQS for the San Joaquin Valley 

(including the contingency measure 

element) and of the contingency 

measure elements for the 2006 24-hour 

PM2.5 NAAQS and the 2012 annual 

PM2.5 NAAQS for the San Joaquin 

Valley. This determination is based on 

our concurrent proposals to approve the 

SJV PM2.5 Contingency Measure SIP, the 

Residential Wood Burning Contingency 

Measure, the Rural Open Areas 

Contingency Measure, and the Smog 

Check Contingency Measure, and our 

July 14, 2023 proposed approval of the 

15 mg/m3 SIP Revision, which resolve 

the deficiencies that triggered sanctions 

under section 179 of the CAA. 

Because the EPA has preliminarily 

determined that the submissions of the 

15 mg/m3 SIP Revision, the SJV PM2.5

Contingency Measure SIP, the 

Residential Wood Burning Contingency 

Measure, the Rural Open Areas 

Contingency Measure, and the Smog 

Check Contingency Measure, address 

the deficiencies identified in the 

November 26, 2021 partial disapproval 

actions and are fully approvable, relief 

from sanctions should be provided as 

quickly as possible. Therefore, the EPA 

is invoking the good cause exception 

under the Administrative Procedure Act 

(APA) in not providing an opportunity 

for comment before this action takes 

effect (5 U.S.C. 553(b)(3)). However, by 

this action, the EPA is providing the 

public with an opportunity to comment 

on the EPA’s determination after the 

effective date, and the EPA will 

consider any comments received in 

determining whether to reverse such 

action. 

The EPA believes that notice-andcomment rulemaking before the 

effective date of this action is 

impracticable and contrary to the public 

interest. The EPA has reviewed the 

submissions of the 15 mg/m3 SIP 

Revision, the SJV PM2.5 Contingency 

Measure SIP, Residential Wood Burning 

Contingency Measure, the Rural Open 

Areas Contingency Measure, and the 

Smog Check Contingency Measure and, 

through its proposed actions, is 

indicating that it is more likely than not 

that they correct the deficiencies that 

were the basis for the actions that 

started the sanctions clocks. Therefore, 


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it is not in the public interest to apply 

sanctions. The EPA believes that it is 

necessary to use the interim final 

rulemaking process to stay the 

application of the offset sanction and 

defer the application of the highway 

sanction while we complete our 

rulemaking process on the approvability 

of the CARB’s submissions of SIP 

revisions intended to address the 

Serious area plan elements for the San 

Joaquin Valley for the 1997 annual 

PM2.5 NAAQS (including contingency 

measures) and the contingency measure 

requirements for the 2006 24-hour PM2.5

NAAQS and the 2012 annual PM2.5

NAAQS. Moreover, with respect to the 

effective date of this action, the EPA is 

invoking the good cause exception to 

the 30-day notice requirement of the 

APA because the purpose of this 

document is to relieve a restriction (5 

U.S.C. 553(d)(1)). 

III. Statutory and Executive Order 

Reviews 

This action stays or defers application 

of sanctions and imposes no additional 

requirements. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and was therefore not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA. This action stays or defers 

application of sanctions and imposes no 

new requirements. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action will not 

impose any requirements on small 

entities. This action stays or defers 

application of sanctions and imposes no 

new requirements. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the National 

Government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. This action stays or defers 

application of sanctions and imposes no 

new requirements. In addition, this 

action does not apply on any Indian 

reservation land or in any other area 

where the EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) directs Federal 

agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations (people of color) and lowincome populations. The EPA believes 

that this type of action does not concern 

human health or environmental 

conditions and therefore cannot be 

evaluated with respect to potentially 

disproportionate and adverse effects on 

people of color, low-income 

populations, and/or Indigenous peoples. 

This action stays or defers application of 

sanctions in accordance with CAA 

regulatory provisions and imposes no 

additional requirements. Although this 

action does not concern human health 

or environmental conditions, the EPA 

identifies and addresses environmental 

justice concerns by promoting 

meaningful involvement in this action 

through providing the public with an 

opportunity to comment on this stay of 

the offset sanction and the deferral of 

the highway sanction as well as the 

opportunity to comment on our 

proposed approvals of the submissions 

of the SJV PM2.5 Contingency Measure 

SIP, Residential Wood Burning 

Contingency Measure, the Rural Open 

Areas Contingency Measure, and the 

Smog Check Contingency Measure in 

the Proposed Rules section of this 

Federal Register. 

K. Congressional Review Act (CRA) 

This action is subject to the 

Congressional Review Act (CRA), and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. The CRA allows the issuing 

agency to make a rule effective sooner 

than otherwise provided by the CRA if 

the agency makes a good cause finding 

that notice and comment rulemaking 

procedures are impracticable, 

unnecessary, or contrary to the public 

interest (5 U.S.C. 808(2)). The EPA has 

made a good cause finding for this 

action as discussed in section II of this 

preamble, including the basis for that 

finding. 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by February 20, 2024. Filing a 

petition for reconsideration by the EPA 

Administrator of this action does not 

affect the finality of this action for the 

purpose of judicial review nor does it 

extend the time within which petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements (see CAA 

section 307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Ammonia, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

dioxide, Particulate matter, Reporting 


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Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87937 

and recordkeeping requirements, Sulfur 

dioxide, Volatile organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: December 12, 2023. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

[FR Doc. 2023–27687 Filed 12–19–23; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 231213–0302] 

RIN 0648–BK57 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to the U.S. Coast Guard’s 

Alaska Facility Maintenance and 

Repair Activities 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; notification of 

issuance of Letter of Authorization. 

SUMMARY: NMFS, upon request from the 

United States Coast Guard (Coast 

Guard), hereby issues regulations to 

govern the unintentional taking of 

marine mammals incidental to 

maintenance and repair at facilities in 

Alaska, over the course of 5 years 

(2023–2028). These regulations, which 

allow for the issuance of a Letter of 

Authorization (LOA) for the incidental 

take of marine mammals during the 

described activities and specified 

timeframes, prescribe the permissible 

methods of taking and other means of 

effecting the least practicable adverse 

impact on marine mammal species or 

stocks and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: Effective from March 1, 2024, 

through February 28, 2029. 

ADDRESSES: A copy of the Coast Guard’s 

application and any supporting 

documents, as well as a list of the 

references cited in this document, may 

be obtained online at: https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-us-coastguards-alaska-facility-maintenanceand-repair. In case of problems 

accessing these documents, please call 

the contact listed below. 

FOR FURTHER INFORMATION CONTACT: Cara 

Hotchkin, Office of Protected Resources, 

NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory 

Action 

We received an application from the 

Coast Guard requesting 5-year 

regulations and authorization to take 

multiple species of marine mammals. 

This rule establishes a framework under 

the authority of the MMPA (16 U.S.C. 

1361 et seq.) to allow for the 

authorization of take of marine 

mammals incidental to the Coast 

Guard’s construction activities related to 

maintenance and repair at facilities in 

Alaska. 

Legal Authority for the Action 

Section 101(a)(5)(A) of the MMPA (16 

U.S.C. 1371(a)(5)(A)) directs the 

Secretary of Commerce to allow, upon 

request, the incidental, but not 

intentional taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region for up to 5 years if, 

after notice and public comment, the 

agency makes certain findings and 

issues regulations that set forth 

permissible methods of taking pursuant 

to that activity and other means of 

effecting the ‘‘least practicable adverse 

impact’’ on the affected species or 

stocks and their habitat (see the 

discussion below in the Mitigation 

section), as well as monitoring and 

reporting requirements. Section 

101(a)(5)(A) of the MMPA and the 

implementing regulations at 50 CFR part 

216, subpart I provide the legal basis for 

issuing this final rule containing 5-year 

regulations, and for any subsequent 

Letters of Authorization (LOAs). As 

directed by this legal authority, this 

final rule contains mitigation, 

monitoring, and reporting requirements. 

Summary of Major Provisions Within 

the Regulations 

Following is a summary of the major 

provisions of this rule regarding Coast 

Guard construction activities. These 

measures include: 

• Required monitoring of the 

construction areas to detect the presence 

of marine mammals before beginning 

construction activities; 

• Shutdown of construction activities 

under certain circumstances to avoid 

injury of marine mammals; and 

• Soft start for impact pile driving to 

allow marine mammals the opportunity 

to leave the area prior to beginning 

impact pile driving at full power. 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

incidental take authorization may be 

provided to the public for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stocks for 

taking for certain subsistence uses 

(referred to as ‘‘mitigation’’); and 

requirements pertaining to the 

mitigation, monitoring, and reporting of 

the takings are set forth. The definitions 

of all applicable MMPA statutory terms 

cited above are included in the relevant 

sections below. 

Summary of Request 

On March 15, 2021, NMFS received 

an application from the Coast Guard 

requesting authorization for take of 

marine mammals incidental to 

construction activities related to 

maintenance and repair at eight Coast 

Guard facilities in Alaska. On November 

24, 2021 (86 FR 67023), we published a 

notice of receipt of the Coast Guard’s 

application in the Federal Register, 

requesting comments and information 

related to the request for 30 days. We 

received no public comments. 

Following additional review, we 

determined the application was 

adequate and complete on January 19, 

2022. On August 12, 2022, the Coast 

Guard submitted a modification to their 

application (to include vibratory driving 

of composite piles as part of the 

specified activity). This revised 

application was deemed adequate and 

complete on August 31, 2022. On April 

28, 2023, we published the proposed 

rule in the Federal Register (88 FR 

26432), incorporating the changes 

submitted by the Coast Guard in August 

2022, and requested comments and 


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